As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
It is gratifying to see that Michael Hulley, President Jacob Zuma’s personal lawyer, today announced that the President has finally provided a list to the Secretary of Cabinet “containing any gifts, benefits or financial interests held or received either by him or by any family member, as required in terms of the Executive Ethics Code”. In a statement, Hulley claimed (rather implausibly) that the delay in submitting this list resulted from uncertainty about the nature of the disclosure to be made, as well as the extent to which declarations of family members were required.
In deciding whether to accept or retain any gift, the President has applied the same high ethical standard he otherwise would have in respect of other members of the Executive. In any event, whilst these gestures are highly appreciated and of immense sentimental significance, none of the gifts are of extraordinary monetary value.
The attendant delay in completing this task responsibly has created an opportunity for some to unfairly speculate without substance. The President does not hold any directorship, membership or shareholding in any company, either public or private, nor is he associated in any way therewith.The suggestions to the contrary are devoid of any truth and are regrettable.
As I pointed out before, section 6 of the Code states that like all other Cabinet members, the President must disclose his own financial interests and those of his spouses, permanent companions and dependent children including: shares and other financial interests in companies and other corporate entities; sponsorships and their sources and “other assistance” and its sources; ”gifts and hospitality” and its sources; “other benefits” and their sources; foreign travel paid by a sponsor and the description of the sponsor; the land and property owned; and the pension owned, its sources and value.
Section 7 of the Code also requires the President to record some financial interests in the secret part of the register. These include: the value of interests in a corporate entity other than a private or public company; the details of foreign travel when the nature of a visit requires those details to be confidential; the details, including the address, of any private residence; the value of any pension; details of the financial interests of a member’s spouse, permanent companion or dependent child; and the member’s liabilities.
One would assume that in order to demonstrate that the President has nothing to hide, the Secretary of Cabinet will immediately make public that part of the declaration that is not deemed secret by the Code. Although there is no legal obligation to do so, one would also assume that given the lingering questions about President Zuma’s financial dealings, he would also volunteer to make public the private aspects of the declaration – at the very least to the extent that it deals with his own finances. Such a gesture may well silence his critics and will allay fears about the extent to which private benefactors have been bankrolling the President and his family.
The public part of the declaration only relates to gifts and benefits given to President Zuma’s since he took office, and would thus not give any indication of the President’s current financial health and the extent to which private benefactors had bankrolled Zuma (if at all) before he took office. It would also not give any indication of the President’s financial liabilities.
The last point is important, as it relates directly to the prosecution and conviction of Schabir Shaik. As I wrote before, the President had told Parliament in 2003 that the more than R1 million he had received from Shaik was a “loan” and therefore need not have been declared. The court found that Zuma would not have been able to repay this “loan” using his salary as Deputy President. Given the fact that Zuma was unemployed for most of the period since the court made this finding, the characterization of this “loan” by Zuma at this stage would be of cardinal importance.
If the President has not listed this amount as a liability, it would mean either that he had paid off the “loan,” or that he now agrees that this was not a loan at all, or that Shaik had forgiven the loan. All three possibilities pose serious questions about the President’s finances.
If he now claims that he had paid off the “loan”, one might well ask who had given Zuma more than R1 million to do so, what the relationship of this benefactor is to Zuma and whether the President has done any favors for this person or whether the person has received any government contracts.
If Shaik had forgiven him the “loan”, then one would have to ask why he had done so and whether the President could now lawfully pardon Shaik. If Shaik had indeed forgiven the “loan”, a question may arise about whether this was done to “buy” a pardon – something that would make a pardon unlawful.
If Zuma now agrees that the money was given as a gift and that it was never a loan at all, he would be conceding that he had defrauded Parliament when he had claimed in 2003 that the money Shaik had given him had indeed been a loan.
It is commendable that in his statement Hulley says that “as Head of State and Government, the President is most mindful of government’s commitment to transparent governance and accountability, to which principles he remains committed in leading government”. These fine sentiments would remain no more than empty words unless the President takes us into his confidence and tells the nation exactly what the state of his financial affairs are.BACK TO TOP